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Think Employees Can’t Record Workplace Conversations? Think Again

During the present administration, the National Labor Relations Board (“NLRB”) has dissected employee handbooks to strike down policies it contends may discourage workers from engaging in protected collective action. Previously, this led the NLRB to object to seemingly routine confidentiality policies and social media policies. (This topic has been discussed in prior CCSB Employment Law Bulletins.) The NLRB has now moved its attention to employment handbook policies that prohibit unauthorized recordings.

In Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), the NLRB held employment policies prohibiting employee recordings of workplace conversations without prior management approval violate the National Labor Relations Act. In reaching that conclusion, the NLRB held that photographic, audio, or video recordings in the workplace—as well as posting these on social media—are protected under the Act if employees are acting in concert for their mutual aid and no overriding employer interest is present. The NLRB provides examples of ways in which unauthorized recordings may constitute protected activity—photographing hazardous working conditions, publicizing audio of internal discussions about work conditions, or recording conversations as evidence for employment-related administrative proceedings.

The NLRB batted away Whole Foods’s defense of its policy. Whole Foods cited a prior NLRB decision upholding a hospital’s “no recording” policy based on privacy and HIPAA concerns. Whole Foods argued its policies preserved legitimate privacy interests, thereby encouraging open communication in the work place, including at the company town hall or store meetings where employees may choose to voice complaints. Although the NLRB recognized some merit to Whole Foods’s purported business justification, it concluded the company’s policies applied more broadly than just those narrow circumstances, and concluded the company’s justification was not as compelling as the patient privacy in a hospital setting.

Although Whole Foods’s blanket prohibition of recording without prior approval was found unlawful, the NLRB held not all workplace recording policies are unlawful but they must be reasonably drawn so that employees understand activity protected by the Act is not restricted. If the NLRB’s recent history with social media policies is any guide, we should expect to see guidance from the NLRB in the form of NLRB General Counsel letters or similar documents to explain in more detail the NLRB’s thoughts on what is and is not an acceptable recording policy.

As a side note, the NLRB did acknowledge that nonconsensual recording is unlawful in many states (i.e., “two party” states). But this did not save Whole Foods’s policy because the policy applied companywide and did not refer to special state law restrictions. Also, although not mentioned by the NLRB, surreptitious audio recordings in which no participating party consents may violate state or federal wiretapping laws.